People v Waterman

People v Waterman 2008 NY Slip Op 08992 [56 AD3d 329] November 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

The People of the State of New York, Respondent,
v
Deon Waterman, Appellant.

—[*1] Lawrence Schwartz, New York, for appellant.

Robert M. Morgenthau, District Attorney, New York (Marc Krupnick of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael J. Obus, J., at hearing; William A. Wetzel, J., at jury trial and sentence), rendered July 31, 2006, convicting defendant of murder in the second degree and criminal possession of a weapon in the second and third degrees, and sentencing him to an aggregate term of 22½ years to life, unanimously affirmed.

At a Rodriguez hearing (People v Rodriguez, 79 NY2d 445 [1992]), the prosecution established that a witness had sufficient familiarity with defendant so that his photographic identification was confirmatory and thus exempt from notice and hearing requirements. The prosecution had no obligation to call the identifying witness, and it properly established this prior knowledge through the testimony of a detective (see People v Espinal, 262 AD2d 245 [1999], lv denied 93 NY2d 1017 [1999]). There is no basis for disturbing the court's determinations concerning credibility. The detective testified that the witness knew defendant's first name and his address, accurately described defendant's girlfriend, had seen defendant on nearly a daily basis in the neighborhood for approximately one year, and had several prior conversations with defendant.

Defendant's arguments concerning trial evidence, including his constitutional claims, are unpreserved, or affirmatively waived, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits. Concur—Tom, J.P., Andrias, Friedman, Catterson and Acosta, JJ.